Admissibility of Expert Evidence in Judicial Review Proceedings

On 24 May 2013, the Chief Justice of the Cayman Islands gave judgment in the judicial review proceedings Axis International Ltd. v The Civil Aviation Authority of the Cayman Islands ("CAACI") and Cayman Islands Helicopters Ltd. ("CIHL"). Axis International Ltd. was successfully represented by Maples and Calder in challenging the CAACI's decision under review. This update looks at one issue decided in that case: the circumstances in which expert evidence is admissible in judicial review proceedings.

Proceedings

On 10 November 2011, the CAACI granted an aerodrome certificate to CIHL permitting commercial helicopter flights from a heliport located on a constrained site in a densely built up area of the George Town waterfront on Grand Cayman. The plaintiff contended that the grant of the certificate by CAACI was Wednesbury unreasonable and initiated judicial review proceedings to review the CAACI's decision.

The broad grounds submitted with respect to the unreasonableness of the CAACI's decision was that the heliport was not suitable for safe commercial helicopter operations for a variety of reasons which constituted breaches of applicable regulations. The plaintiff contended that various aspects of helicopter operations such as how a helicopter flies, emergency situations it may encounter and the effect of factors such as wind speed and direction were required to be understood before the question of whether the CAACI had acted unreasonably could be properly determined. The matters were of such a technical nature that the court would require the assistance of expert evidence to properly understand them for a just conclusion to be reached. Therefore, the plaintiff sought to have expert evidence submitted which dealt with the technical aspects of helicopter operations and flight safety.

Expert Evidence in Judicial Review Proceedings and Lynch

It is rare for expert evidence to be considered either relevant or admissible in judicial review proceedings, particularly where the public body making the decision under review is itself composed of experts or has been advised by an expert assessor. This is in part because: (i) the court is carrying out a limited review of the decision reached by the public body and not substituting its own view; (ii) where the public body is likely either to be made up of experts or would have taken expert advice, it may involve an attempt to challenge the factual conclusions and judgment of such an expert; and (iii) such evidence may usurp the court's function in determining the reasonableness of the relevant decision.

The reasons for this principle were set out in the English case, R (on the application of Lynch) v General Dental Council [2003] EWHC 2987 (Admin). In his judgment, Collins J drew an important distinction between a report from an expert which explains what is involved in a particular process and how complicated that process is, and one which attempts to opine on the rationality or irrationality of a public body in making a particular decision. The former, he accepted, in a truly technical field, could be admissible to assist the court, but the latter would not. Even then, he cautioned that the "cases where this can be permitted will be very rare and what I have said should not be regarded as opening the door to the admissibility of experts' reports in all cases such as this which involve judicial review of an expert tribunal or body1".

The Application of Lynch

Recognising that the safe operation of helicopters and heliports should be considered a truly technical field, in the Lynch sense, the plaintiff applied to have its expert evidence admitted. At page 80 of his 149 page judgment, the Chief Justice agreed with the plaintiff's argument by unequivocally stating:

"In order for the Court to form its view on the reasonableness of the decision challenged, it needs to be assisted by expert evidence on aviation operations and flight safety. That expert evidence can address not merely standards applied internationally to the design of heliports, but also such fundamental matters as how helicopters take-off, hover, fly forwards, and land; what happens when a single engine helicopter suffers an engine or hydraulic failure; and how wind speed and direction can affect the safe operation of a helicopter. This has been the basis – limited as advised by the case law – upon which I have relied upon expert evidence in this case. And I should emphasise, to that extent the expert evidence has not been controversial."

Conclusion

Although this point was decided as a preliminary issue at the trial, the Chief Justice recognised that this decision was of sufficient general importance that it justified further explanation in his judgment. With the increase in the prevalence of judicial review proceedings being brought in the Cayman Islands concerning decisions taken by public authorities, this judgment will no doubt prove a helpful review of the relevant principles which must be considered when dealing with the admissibility of expert evidence.